This Civil Miscellaneous Appeal has been filed against the fair and decreetal order dated 16.05.2011 made in MCOP.No.1162 of 2010 on the file of Motor Accidents Claims Tribunal, (Fast Track Court No.2), Tirunelveli.
2.In an accident which occurred on 18.08.2010, one Raja Mohamed, husband of the 1st respondent and father of the respondents 2 to 4 died. The legal representatives of the deceased laid a claim petition in MCOP.No.1162 of 2010 on the file of Motor Accidents Claims Tribunal, (Fast Track Court No.2), Tirunelveli. The appellant insurance company resisted the claim contending that the deceased and others travelled in the goods vehicle as unauthorised passengers and further, the Lorry bearing No.TN 69 U 7504 belonged to the 5th respondent insured with the appellant did not have valid permit at the time of accident. In view of the abovesaid violations of the insurance policy, it was contended that the appellant insurance company is not liable to pay compensation. Upon analysis of oral and documentary evidence adduced on either side, the Tribunal directed the insurance company to pay compensation of Rs.5,65,000/- with interest @ 8% per annum to the respondents/claimants and thereafter recover the same from the owner of the vehicle. Aggrieved by such order of pay and recovery, the appellant has filed this appeal.
3.The main contention of the appellant insurance company is that the Tribunal erred in directing the appellant to pay compensation to the claimants at the first instance and thereafter recover the same from the owner of the vehicle even after holding that the owner of the vehicle had violated the terms and conditions of the policy of insurance. Therefore, it is pleaded that the appellant should be totally exonerated from its liability to pay compensation.
4.Heard the learned counsel for the parties and perused the materials available on record.
5.Perusal of the impugned judgment reveals that it is the admitted fact that along with the deceased, seven persons travelled with fish bags in the goods vehicle insured with the appellant. The oral testimony of PWs 1 and 2 also confirm the said fact. There was no denial on the part of the insurance company that the deceased did not travel in the goods vehicle along with fish bags. The Assistant Manager of the appellant company examined as RW1 deposed that as per Ex.R1-Insurance Policy of the goods vehicle, two persons can travel, one is driver and another is owner of the goods and the insurance company is liable to indemnify in respect of the said two persons and not other persons who travelled in the goods vehicle. It was also admitted by the appellant before the Tribunal that at the time of accident, the deceased travelled in the goods vehicle as owner of the goods, but travelled on the backside of the vehicle instead of travelling in the Cabin, thereby violated the terms and conditions of the insurance policy. Further, there was no valid permit for the goods vehicle on the date of accident. Therefore, the Tribunal directed the appellant to pay compensation to the claimants at the first instance and thereafter recover the same from the owner of the vehicle.
6.It is a well settled legal position that payment of compensation by the appellant insurance company is statutory in nature and there cannot be any total exoneration. If the insurance company is able to discharge the burden of proof that the vehicle was driven by an unlicenced person or there were violations of policy conditions, pay and recovery alone can be made.
7.Therefore, this Court does not find any infirmity or perversity in the finding of the Tribunal regarding pay and recovery and hence, the same is confirmed. The appellant is entitled to recover the award amount from the owner of the vehicle as per the mode incorporated in the judgment of the Hon'ble Supreme Court in Oriental Insurance Co.Ltd., Vs. Shri Nanjappan and others, reported in I (2004) ACC 524 (SC) which is extracted hereunder:-
''(7) ....For the purpose of recovering the compensation amount from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the insured was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. A notice shall be issued to the insured to furnish security for the entire amount. The offending vehicle shall be attached as a part of the security. If necessity arises, the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property of the insured. ....''
8.The quantum of compensation of Rs.5,65,000/- with interest @ 8% per annum awarded to the legal representatives of the deceased who died leaving behind his wife aged 36 years and two minor children aged 15 and 9 respectively at the time of accident cannot be said to be excessive or bonanza warranting interference by this Court. Hence, the quantum of compensation is confirmed.
9.The appellant is directed to deposit the entire award amount with interest and costs to the credit of the claim petition within a period of four weeks from the date of receipt of a copy of this judgment, less the amount already deposited, if any. On such deposit, the respondents 1 and 2 are permitted to withdraw their respective shares with proportionate interest and costs. So far as the shares of the respondents 3 and 4/minors are concerned, the same shall be invested in a Nationalised Bank till they attain majority. It is open to them to file appropriate application before the Tribunal for withdrawal of the award amount after attaining majority.
In the result, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To The Judge, Motor Accidents Claims Tribunal, (Fast Track Court No.2), Tirunelveli.
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